Game Theory Provides A New Mandate For Our Courts
Game Theory Provides A New Mandate For Our Courts
In this case study we hear Judge John Pisansky declare that he is "The Finest Judge in the World". Then we hear him tell lawyer, Howard Duff, with regard to his divorce case, that the case itself has no importance and that his only concern is that Howard “make some money on this case”. Then we hear Judge Pisansky render a $210,000 verdict in Howard’s favor.
The attached trial audio demonstrates that the law itself is pliable and ambiguous enough to support any verdict a judge feels like rendering. As such, the only thing that really matters is the Judge's agenda. Therefore we must have judges with higher agendas than helping lawyers make money. If not, (generally speaking) our brightest people will continue to leave and the one’s that can’t leave will simply stop working.
At first thought it might seem that justice might be a good agenda for a justice to have. But unfortunately the concept of justice is highly subjective and is every bit as ambiguous as the law.
In this case Judge Pisansky actually views the plaintiff’s lawyer as the injured party and thinks that justice will be served by making sure that he makes some money. If this case shows anything, it shows that justice is an arbitrary concept with no universal standard of measurement. So to say that a judge seeks to serve justice is to say that he serves his own agenda and personal world view.
This view of justice is supported by the work of logician Kurt Godel who proved in his famous Inconsistency Theorem that any axiomatic system of logic (like the law) is either incomplete or self-contradictory. This is important because it shows with mathematical certainty that we can stop wasting our time trying to define justice in terms of law.
Just ask anyone involved in any war or any kind of conflict. Surely they will tell you that justice is on their side. Now ask anyone on the other side of the conflict and they will tell you the same. From this we know that justice is a highly subjective highly emotional construct capable of carrying any meaning we assign to it. We are all nevertheless irresistibly compelled to rally behind the justice banner when we see it. This is because evolution has wired our brains to do so. This makes perfect sense when you consider that creatures that hunt in packs generally live longer themselves and make life shorter for competing solitary creatures. The justice instinct is the mechanism, the emotional glue if you will, that allows human beings to form a cohesive pack.
Even if we remove predation from the equation we still have a big problem. Trials conducted under ideal conditions produce losers. And losers who believe they were treated unjustly (nearly all of them) will spend the rest of their lives telling people that there is no justice from the justice system. These are people who will never trust again. These are people who will teach others not to trust. And this makes all of us poorer because people who don't trust are people who don't collaborate, don't work, and don't save. These angry destructive losers have a much greater effect on society than the happy winners because trust is far easier to destroy than to build. The losers themselves aren't the problem. The problem is that there are losers. And whenever you administrate justice, you create losers.
So if not justice, what agenda can a judge administrate that will serve society and its individuals in every situation? And what universal standard can we use to measure the effectiveness of the judge’s verdicts? The relatively new science of game theory provides the answer. Game Theory is a branch of applied mathematics and economics that studies situations where players choose different actions in an attempt to maximize their returns. First developed as a tool for understanding economic behavior and then by the RAND Corporation to define nuclear strategies, game theory is now used in many diverse academic fields, ranging from biology and psychology to sociology, philosophy, business, military strategy and the law. Of particular interest in choosing an agenda for the courts that will serve all individuals and society as a whole is the Nash equilibrium. This is a concept from game theory, (named after John Forbes Nash, who proposed it). The Nash Equilibrium is a combined game strategy involving two or more players, where no player has anything to gain by changing only his or her own strategy unilaterally. In other words, if each player has chosen a strategy and no player can benefit by changing his or her strategy while the other players keep theirs unchanged, then the current set of strategy choices and the corresponding payoffs constitute a Nash Equilibrium. Nash showed for the first time in his dissertation, Non-cooperative Games (1950), that Nash equilibria must exist for all finite games with any number of players. This means that for any court battle there exists at least one strategy (set of responses) that the combatants will lock into. Further more, if there is only one Nash equilibrium and the combatants understand their incentives, options and payoff’s, you can predict what they will do. If there is more than one Nash equilibrium, then you can predict the odds of what the combatants will do. More specifically you can predict how likely they are to cooperate.
Here’s a well known courtroom scenario called Prisoner’s Dilemma that demonstrates how game theory can be used to predict (and control) cooperation. The mayor of Moneytown owns a construction company and has been endorsed by a union called The United Brotherhood of Prison Guards. Together they plan to make Moneytown safer for decent society so they put pressure on the prosecutor to fill up their small jail so that they can build a bigger one. Yes, this will provide more work for the prison guards, a lucrative contract for the mayor, and it will help to advance the prosecutor's career. But none of these people view themselves as self-serving. All involved believe according to their justice instinct, which is driven in no small part by personal agenda, that they are acting justly and in the best interests of their community.
In custody are two young black men that don’t know each other who were caught together during a drug raid on a dance club. Each was carrying a small bag of pot that guarantees they will each do a year in jail for possession. Well it turns out that the prosecutor understands game theory and sets up a deal that ensures the two will falsely accuse each other of larger crimes which increases the jail time each must serve and helps to keep the jail full. All he does is put them in different cells and tells them that they will get a year off their jail sentence if they will give sworn testimony that the other is a major drug trafficker, which caries a sentence of 4 years.
The table below maps out the amount of jail time each of our young prisoners will receive according to all their possible responses. The right numeral in each coordinate pair shows the amount of jail time endured by the prisoner whose responses are shown in the row along the top of the table. The left numeral in each coordinate pair shows the jail time endured by the prisoner who's responses are shown in the column that runs down the left side of the table.
Quiet____| 1, 1 | 4, 0 |
Fink_____| 0, 4 | 3, 3 |
The Nash equilibrium is seen in the finale row and column as the result of the strategies where both men accuse each other of being major drug traffickers and as such they receive 3 years each. That is, they each receive 4 years for conviction on the others testimony but get one year off for accusing the other of being a major drug trafficker. Naturally, it would seem that the best strategy would be for both men to remain quiet, as shown in the first row and column. This way each would receive only a year in jail for possession. But no matter what one man does, the other will always do better by falsely accusing his counterpart (This satisfies our previous definition of the Nash equilibrium). In other words, even if the first man refuses to bear false witness against the second, the second man knows he will still do better by falsely accusing the first, as in that case, he would not do any time in jail at all. That is, he gets one year in jail for getting caught with a bag of pot, but gets one year off for accusing the other of being a major drug trafficker. This amounts to a total of zero time in jail. This strategy is represented by the table above in the bottom left cell and again in the top right cell. Both men know that they are better off by falsely accusing the other, no matter what the other man does. So in the end, both will decide to falsely accuse each other. The reason our young men will turn against each other is that the two have no prior trust relationship and cannot form one through communication. Remember they are being held in separate cells. But what would our two young black men have done if they were counseled by a trusted civil rights leader and shown the following table of strategies? They would cooperate of course and refuse to give false testimony against each other.
So given an understanding of what litigants are trying to accomplish you can predict with a high degree of certainty whether they will cooperate with each other or not. And when given even a small amount of control over courtroom conditions, it is possible to either ensure that litigants will cooperate or ensure that they will not. Why is this important? Because, as I stated in the very first paragraph of this topic, all societies are formed with the intent that members will cooperate for the benefit of all, and the justice system exists to deter predatory (uncooperative) behavior. So while Godel has established that justice can not be measured and there for reliably agreed upon, we can measure cooperation and we can all agree when cooperation has been achieved because if all litigants do not agree that all are cooperating, then they are clearly not in cooperation with each other.
The point is that judges have a lot of control over the conditions that litigants work under. After all, judges administrate the trials and decide the cases. So with an understanding of what the litigants want, the available choices, and an understanding of game theory, it is possible to create conditions that will cause litigants to cooperate with each other. And isn’t that what everybody wants?
Well actually no, it’s not what every body wants. Lawyers only make serious money when people litigate (agree not to cooperate). And what did Judge Pisansky tell the plaintiff’s lawyer? That the case itself means nothing and that he only hoped the plaintiff’s lawyer was making some money on the case.
The fact is that once lawyers get involved in a divorce case, it plays out very much like the Prisoner’s Dilemma we just read about. That’s because all communication now goes through the lawyers who have no interest in getting the litigants to work together. In fact lawyers often ensure that the couple will not communicate by getting the woman to falsely accuse the man of domestic violence. Then in almost all cases a judge will grant a restraining order that guarantees the two will not communicate. So mathematically speaking, the divorcing litigants are in exactly the same situation as our two prisoners. As a result the two bear false witness against each other as instructed by their lawyers in an attempt to keep what they can. In the end however, the two are ruined as they blindly bash each other like piñatas. Mean while, their lawyers scamper around picking up the shattered pieces of their lives as if it were fallen candy.
Going forward, we can prevent couples from destroying what they produced together by mandating counseling prior divorce trials. Here divorcing couples will talk to a councilor and if possible to each other about their goals. Together they will map out which strategies lead to cooperation and best possible outcome according to their goals, and they will identify which set of choices lead to lawyers devouring everything they built together. From a game theory perspective, this is the mathematical equivalent of placing our two young black men in the same cell and giving them the same councilor.
When doctors are required to separate conjoined twins, justice is not a consideration. The only two questions are “What is the best possible way to divide one body such that maximum total benefit of it will be preserved for the two individuals that share it?” and “How can we help these two individuals adjust to their newly divided body.”
The goals of divorce must be the same. “How do we separate these people so as to preserve, for all, the maximum total benefit of what they share?” and “How can we help all involved adjust to their new lives without each other and without all the things that they once had?” But in New Jersey you can’t even get a divorce unless there is a complaint and someone is found at fault. Then the property and children are divided up based upon those findings. So asking divorcing couples to work together and speak the truth about one another under these conditions is like asking our two prisoners to stay quiet while knowing that know matter what the other one does, each will do much better by bearing false witness against the other.
Instead of forcing divorcing couples to play Prisoners Dilemma, why not consider asking them what game theory model they think will lead to the best possible resolution of their case. One model they might agree to use is from a sub discipline of Game Theory called Fair Division. The model is called Cake Cutting. The object of this game model is to have opponents divide a jointly owned cake so that each will agree that he or she has received his or her fair share of the cake. The solution is to ask one player divide the cake into two pieces with the understanding that the opposing player will select the best piece.
Of course this model could not work well in deciding child custody, but if divorcing couples selected the cake-cutting model to settle the property issues, then players would be less likely to use their children for clubbing opponents during property disputes.
The simple cake-cutting model does not anticipate problems such as maliciously dividing assets in such a way as to make them valueless but I am not trying to promote that simple model. All I am trying to say is that the typical divorce trial is mathematically equivalent the prisoner’s dilemma and that there must be a better model. Also I am saying that divorcing couples should be given mandatory counseling and a choice about which game theory model to use when dissolving their relationship.
So in closing I maintain that:
1. Justice can not be measured or even defined but cooperation can. And cooperation is the very thing people are hoping for when coming together to form a society. Therefore a better mandate for our courts is facilitating cooperation as opposed to finding fault.
2. In settling disputes, the courts should be mandated to work towards decisions that yield maximum total benefit for all litigants within the confines of the law as opposed to administrating the nebulous concept of justice.
3. Mapping the Nash equilibria of any court battle will expose for all to see, which strategies lead to best outcomes with cooperation and which lead to maximum loss with endless litigation. Therefore counseling should be mandated before going to trial.
See how we can get fair trials now:
As you can hear, the judge is frustrated with our country’s legal system because the defendant can appeal to a higher court. But the judge doesn’t seem to realize that he is a huge part of the problem. When judges are more concerned about lawyer’s “making some money” then in understanding what happened in the cases before them, you wind up with a trial where lawyers can make any false claims they want. Animosity and hysteria are generated in the jury and defendants are convicted on those emotions rather than on the real facts in the case. This is the very definition of a witch trial and witch trials lead to appeals.
In this case the plaintiff falsely accused the defendant of raping her 3 times during their marriage. Then she changed it under oath to 500 times. But cross examination in a later trial shows that the man was innocent of rape. Listen for your self at http://www.justodians.org/Sounds/WheresTheRape.htm
The plaintiff’s lawyer accused the defendant of having 12 miscarriages with a former wife (not the plaintiff) and then accused him of leaving her because she couldn't have children. But the defendant married his first wife knowing she had had 10 miscarriages with her first husband and they adopted a daughter together. The defendant and his first wife are still good friends.
And finally the plaintiff accused the defendant of secretly removing his condom during sex in order to make her pregnant. The last two charges were made at the very end of the trial without any formal complaints having been filed. There was simply no way for the defendant to defend himself yet Judge Pisansky allowed the complaints to be heard by the jury. The man was found to be a kidnaper in this trial, but he claims he was preventing his son from being unlawfully removed from the United States. In a later trial however, the plaintiff's passport was confiscated for absconding with the man's child to Guatemala. See http://www.justodians.org/Sounds/PassPortConfiscated.htm for that court order.
“This is about nothing” the judge said. He is wrong. This is about exploitation of the very legal system that he was supposed to protect. It’s about real human beings whose lives have been shattered because the legal system is so easy to abuse.
When most of us think of witch hunters we imagine people running around with pitch forks carrying off old women and burning them at the stake. But this is not what happened during the witch hunts of the 1600s in Europe and America. Almost all of these 40,000 people were given trials before being burned. The court records still exist. Burning witches was extremely expensive. Huge piles of wood had to be chopped by hand and the trials themselves were expensive too. So where did the money come from to do this? Well the money was acquired by confiscating the property of the defenseless widows being tried and burned. A certain amount was given to the courts for presiding over the harvest, expert witnesses (priests) were paid, and the rest the lawyers got to keep. The eyewitnesses were usually people with grudges against the widows and they were the ones that brought the cases to the lawyers. The public supported the whole affair because the lawyers were able to exploit the public's fear and ignorance buy creating hysteria. Does any of this sound familiar? How much has really changed in 400 years?
Everyone now knows that magic isn't real. So lawyers no longer accuse people of being witches. But people are terrified of rape and kidnapping and we all know that these people really do exist. When a man harms a woman we are all outraged and very quick to help. This is as it should be. But the mere thought a man harming a woman also incites outrage and this is what modern day witch hunters are counting on. When people are outraged, two things happen to them; they experience a high level of anxiety and they're capacity for objective thinking is diminished. In this state of mind the likelihood that a man will be convicted of these crimes is related more closely with the level of outrage a lawyer is able to incite in a jury then with the actual facts presented. This is because outraged people are eager vent their anger and return to a normal relaxed state and defendants provide that outlet. The point is that all the elements of witch hunting still exist today. Instead of neighbors with grudges, witch hunters are hired by unscrupulous wives seeking to cash out of their marriages. Instead of accusing rich widows of witchcraft, lawyers now falsely accuse rich men of domestic violence and rape for advantage in divorce. When it is the woman who has the wealth, then their husbands often bring false charges. Instead of paying priests for expert testimony on the effects of witchcraft, lawyers now pay psychologists to give expert testimony about mental anguish. Some things have not changed. When the relationship between judges and lawyers is adversarial, lawyers are forced to make their proofs, and the legal system generally works. But when judges work closely with lawyers and refuse to examine evidence objectively, the innocent are often punished and the guilty often go free. Judge Pisansky’s words demonstrate sympathy towards Mr. Duff’s wallet and animosity towards our country, our legal system, and the people who come to him for justice. The question before him was not whether or not Mr. Duff “makes some money on this case”. The question was, did the plaintiff abduct the defendant's child to provoke a situation that could be used for advantage in divorce. Did the plaintiff bear false witness against the defendant? Was she a reliable source of information for her own experts? And was the defendant deliberately and falsely painted to be a rapist/kidnaper for the sole purpose of inciting hysteria and outrage in the jury? In other words, was a witch trial conducted?
Of even greater concern is that we hear Judge Pisansky brag at the beginning of this recording, that a month ago he was given (with his permission) the 11 oldest matrimonial cases in Union County. Then he brags that he has already ended 6 cases without a trial. Finally he brags that the rest will be over within a month; which means that he has no intention of allowing them to come to trial either. How is it that Judge Pisansky was able to end 11 of the longest running cases in the Union County Court System without even hearing the cases? I suspect that he did the same thing with those cases he did in this case. He made it clear up front that the cases would not be heard in earnest and that the only thing he would do is ensure that the lawyers would make some money. It’s bad enough that Judge Pisansky refuses to hear the cases brought before him, but what troubles me is that the Union County Court System is feeding him these cases for the express purpose of shutting them down without hearing them. Why else would they have given him the 11 oldest cases? This is a direct violation of our 7th Amendment rights.
A Letter written to Judge Pisansky after pretrial conference but prior to trial can be found by clicking here
Discusses attempted intimidation by Judge at Pretrial Conference.
The trial audio published on this page contains Judge Pisansky’s final ruling in the case.
The Union County NJ Docket is UNN-L-1817-02
The Appeal to the NJ Appellate Court of Judge Pisansky’s ruling can be found by clicking here
Appellate Docket # A-006160-04T2
The Appellate Court's decision can be found by clicking here
Appellate Docket # A-006160-04T2
The Motion for reconsideration of NJ Appellate Court ruling can be found by clicking here
Appellate Docket # A-006160-04T2
That motion was denied
The Appeal to New Jersey Supreme Court of Judge Pisansky’s ruling can be found by clicking here
NJ Supreme Court Docket # 60952
The New Jersey Supreme Court denied the petition to hear the case without giving a reason.
The motion to New Jersey Supreme Court for reconsideration or in the alternative to explain why the request to be heard was denied can be found by clicking here
Supreme Court Docket # 60952
This motion for reconsideration or clarification was denied by the New Jersey Supreme Court on Sept, 5, 2007. The court would not give a reason despite the motion’s request that they do so.
This case is now under appeal in the United States Supreme Court. The docket number is 07-7281. The documents filed with that court can be found on the following pages
Statement of the Case
Reasons for Granting the Appeal
The Supreme Court of the United States declined to hear the case without giving a reason.
The request to United States Supreme Court to reconsider whether or not they will hear this case can be found by clicking here
This was the last request to be heard that the law allows. The U.S. Supreme Court refused to hear this case.
Key trial audio of the divorce case Union county DOCKET NO. FM-20-01613-01A can be found by clicking here
This is the case from which Judge Pisansky’s case was bifurcated. This is the case that Judge Pisansky is heard ranting about in the trial audio on this page. This is the case, about which the judge is heard saying,
“What a great country this is. I just hope that you’re making some money on this case.”
By listening to his rant it becomes clear that Judge Pisansky gave the defendant a dirty trial because he refused to role over in a different case. But by reading these court documents it will become clear why the defendant had no choice but to defend himself. As a side note, the very last thing seen in the transcript of the judge’s decision is Judge Pisansky saying, “So, the divorce continues, is that what we’re doing?” This is not heard in the recording on this webpage because the recording given to the defendant by the court house was truncated. The defendant is now trying to get the complete recording. This illustrates just one more reason the defendant believes we need national legislation mandating that all trial audio for all public court proceedings must be posted on the internet. www.justodians.org/ProjectCSPAN.htm
The actual divorce appeal A-001476-05T1 can be read by clicking here
The reply to the plaintiff's response of the divorce appeal can be read by clicking here
The Appellate Court's decision can be found by clicking here
The motion to the Appellate Court for reconsideration of their decision can be read by clicking here
The Petition for Certification of Divorce Case in the Supreme Court of New Jersey can be read by clicking here
The Motion to Reconsider the Petition for Certification of Divorce Case in the Supreme Court of New Jersey can be read by clicking here
The divorce case is now under appeal in the United States Supreme Court.
A docket number is 08-8324.
The documents filed with that court can be found on the following pages.
Statement of the Case
Reasons for Granting the Appeal
The US Supreme Court Declined to hear the case on March 30 2009
The motion to The US Supreme Court for reconsideration of the petition to hear the case can be read by clicking here
See how we can get fair trials now:
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